State ex rel. Olsen v. Swanberg

• Decision Date: 27 June 1956
• Docket Number: No. 9566,9566
• Citation: 130 Mont. 202,299 P.2d 446
• Parties: STATE of Montana ex rel. Arnold H. OLSEN, Attorney General, Relator, v. Robert F. SWANBERG, Defendant and Respondent, and Harold L. McChesney, Defendant and Appellant.
• Court: Montana Supreme Court

Page 446

299 P.2d 446

130 Mont. 202

STATE of Montana ex rel. Arnold H. OLSEN, Attorney General, Relator, v. Robert F. SWANBERG, Defendant and Respondent, and Harold L. McChesney, Defendant and Appellant.

No. 9566.

Supreme Court of Montana.

Submitted Nov. 4, 1955.

Decided June 27, 1956.

Daniel J. Sullivan, Edmond G. Toomey and Michael J. Hughes, Helena, argued orally for appellant.

Ralph J. Anderson and Stanley P. Sorenson, Helena, for respondent. Ralph J. Anderson argued orally.

ANDERSON, Justice.

This is an appeal from a judgment wherein the court below, in a quo warranto proceeding, held that Mr. Swanberg was entitled to the office of chairman of the board of the Industrial Accident Board of Montana.

On April 29, 1955, the Governor appointed the appellant McChesney 'Chairman of the Industrial Accident Board for a four year term expiring May 1, 1959' to replace Mr. Robert F. Swanberg who had been appointed on the 29th day of December 1952 to fill the unexpired term of Baxter Larson, such term expiring on May 1, 1955. At the time of the appointment of McChesney the legislature was not in session, and had not been since its adjournment sine die on March 3, 1955. Hence Mr. McChesney's appointment has not been referred to the Senate for confirmation; and that body has not yet given its consent thereto.

The only statute which gives the Governor power or authority to appoint to the Industrial Accident Board is section 92-104 of the Codes as amended by Chapter 161, Laws of 1953. This section is a special statute designed to define the governor's authority to appoint to this board alone. As such it controls any other statute which relates to the general powers of the chief executive to appoint to public office, or to fill vacancies therein. In re Wilson's Estate, 102 Mont. 178, 195, 56 P.2d 733, 105 A.L.R. 367. It follows that if Mr. McChesney's appointment does not square with section 92-104, as amended, he has no title to the office here in controversy unless that statute conflicts with the Constitution or for any reason is not applicable.

That statute plainly stipulates that the governor's authority to appoint is conditioned upon the consent of the Senate given thereto. No other meaning may be put upon the words found in Chapter 161, viz., 'by and with the consent of the senate.' It must be presumed that by this amendment the legislature intended to effect some change in the law as it read theretofore and in its application particularly to the appointment of the chairman of the Industrial Accident Board. Nichols v. School District No. 3, 87 Mont. 181, 186, 287 P. 624.

Before the enactment of Chapter 161 an appointment by the governor to that board under section 92-104 was effective at once by the governor's act alone and without more. In these circumstances it is clear that the change intended and actually effected by the amendment, which Chapter 161 makes, is to add the condition that an appointment to this board by the governor shall be neither complete nor effective until the consent of the Senate has been given. Otherwise this chapter adds nothing to section 92-104 as it was construed and applied before amendment.

The last three lines of the amendment to R.C.M.1947, Sec. 92-104, read: 'provided, however, the provisions of this act shall not be applicable to the chairman of the board until the expiration of term of the present chairman of said board.' The present chairman referred to in the statute was Mr. Swanberg. As applied to this case, this paragraph simply means that confirmation of Swanberg was unnecessary but plainly it requires confirmation of his successor.

Counsel for McChesney contend that there was a vacancy in the office occurring during a recess of the Senate authorizing an appointment under section 7 of Article VII of our Constitution without confirmation of the Senate. Section 7 of Article VII contains this paragraph: 'If during a recess of the senate a vacancy occur in any such office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate, when he shall nominate some person to fill such office.' That paragraph of the Constitution has reference only to such vacancies which leave the office without anyone to discharge the duties and does not apply to a case where the incumbent holds until his successor is elected or appointed and qualified and is discharging the duties of his office. This court has so held in State ex rel. Nagle v. Stafford, 97 Mont. 275, 291, 34 P.2d 372. In that case there was before this court for construction what is now R.C.M.1947, Sec. 3-102, which provides that the commissioner of agriculture shall be 'appointed by the governor, by and with the consent of the senate.' The term of the incumbent Stafford ended on April 1, 1933. But because the statute also stipulated that not only should he 'hold office for a term of four years', but also 'until his successor is appointed and qualified', Stafford held over after April 1, 1933, claiming his office as against his successor Bruce, to whose appointment by the governor the Senate had not given its consent. The Stafford case is identical with the instant controversy between Mr. Swanberg and Mr. McChesney. The following language found in the Stafford opinion becomes controlling here, viz., "where a person is appointed to an office under a constitutional or statutory provision that the appointment may be made with the approval of some officer or body, such appointment must be approved before the person is legally entitled to the office, except in the case of such a vacancy in the office that the duties of the office are no longer being discharged.' Note 17 Ann.Cas. 1011 * * *'. State ex rel. Nagle v. Stafford, supra, 97 Mont. at page 290, 34 P.2d at page 379. The authorities cited there, including State ex rel. Chenoweth v. Action, 31 Mont. 37, 77 P. 299, support the rule to which the lower court adhered. We see no reason for departing from this rule.

In State ex rel. Sandquist v. Rogers, 93 Mont. 355, 18 P.2d 617, 618, the appointments by the mayor of the City of Havre to the office of city engineer failed of confirmation by the council. Under R.C.M.1947, Sec. 11-802, subd. 1, then in effect as R.C.M.1921, Sec. 5030, subd. 1, the mayor was empowered to nominate, and, 'with the consent of the council, to appoint all non-elective officers.' This court held in the Rogers case: 'The nominees of a mayor who fail to be confirmed by a city council do not become effective as officers, and cannot assume that status until concurred in by a majority of the city or town council.' The statute there construed spoke of the power of a mayor to 'nominate' to office whereas section 92-104, as amended by Chapter 161, gives the governor authority to appoint. Under either statute confirmation by authority other than the governor or the mayor is required to complete the nomination or appointment.

In State ex rel. Peterson v. Peck, 91 Mont. 5, 4 P.2d 1086, the right of a city clerk appointed by the mayor of the town of Sweet Grass to act without confirmation by the city council was drawn in issue. This case is a close parallel to State ex rel. Sandquist v. Rogers, supra. This court said that the power of the mayor 'to nominate to fill a non-elective office also includes like authority when a vacancy arises therein; but in either event the appointment is not effective until concurred in by a majority of the city or town council.' See 91 Mont. at page 7, 4 P.2d at page 1087.

These decisions are controlling in the instant cause. We need not look for authority elsewhere. This court said in Holt v. Sather, 81 Mont. 442, 455, 456, 264 P. 108, 114, that cases 'from another jurisdiction, in direct conflict with a decision of this court, are not persuasive.'

Counsel for Mr. McChesney have suggested a distinction between the tenure of officers holding over under our Constitution until their successors be elected or appointed and qualified, and those officers who hold under a statute alone. Whatever distinction there may be here in fact we see none in principle. There is no material difference between the facts and the constitutional provision construed and applied by this court in the Acton case, on the one hand, and the facts and the statute now before this court for construction and application, on the other hand, in disposing of Mr. Swanberg's title presently in issue. It was frankly conceded upon the oral argument by counsel for Mr. McChesney that we should overrule State ex rel. Chenoweth v. Acton, supra, as well as State ex rel. Nagle v. Stafford, supra, and must do so, in order to reach the conclusion that on and after May 1, 1955, there was a vacancy on the Industrial Accident Board which could be filled by the governor in the exercise of his constitutional powers. As we have said before we are not persuaded that these precedents should be so overruled.

The authorities which we find elsewhere carry the conviction that the Stafford and Acton cases were rightly decided, and that the rule there laid down should be adhered to. See McCall v. Cull, 51 Ariz. 237, 75 P.2d 696; State ex rel. Rogers v. Johnson, 135 Wash. 109, at page 115, 237 P. 12; People ex rel. Warren v. Christian, 58 Wyo. 39, at pages 51-60, 123 P.2d 368; Alcorn ex rel. Hendrick v. Keating, 120 Conn. 427, 432, 181 A. 340; State ex rel. Ryan v. Bailey, 133 Conn. 40, 48 A.2d 229; People ex rel. Baird v. Tilton, 37 Cal. 614, 621; State ex rel. Barnes v. Holbrook, 136 Conn. 312, 316, 70 A.2d 556; State ex rel. Smith v. Tazwell, 166 Or. 349, 111 P.2d 1021; State ex rel. Rives v. Herring, 57 N.M. 600, 261 P.2d 442; State ex rel. Fares v. Karger, 226 Ind. 48, 77 N.E.2d 746; State ex rel. Landis v. Bird, 120 Fla. 780, 163 So. 248; State ex rel. McCarthy v. Watson, 132 Conn. 518, 45 A.2d 716, 164 A.L.R. 1238, and Annotation commencing at p. 1248; 67 C.J.S., Officers, Sec. 51b(2), pp. 213, 214; 42 Am.Jur., Public...